Re Agar-Ellis. Agar-Ellis v Lascelles

JurisdictionEngland & Wales
Date1878
Year1878
CourtCourt of Appeal
[COURT OF APPEAL] In re AGAR-ELLIS. AGAR-ELLIS v. LASCELLES. [1878 A. 95.] 1878 Aug. 5. 1878 Nov. 11, 12, 15, 23. Malins, V.C., James, Baggallay, and Thesiger, L.JJ.

Infants - Religious Education - Rights of Father - Examination of Infants by the Court.

A Protestant on his marriage with a Roman Catholic lady promised that the children of the marriage should all be brought up as Roman Catholics. Soon after the birth of the first child he determined that they should be brought up as Protestants, to which determination he adhered. At the time of the proceedings there were three children, girls, aged respectively nine, eleven, and twelve. The mother, unknown to the father, and in spite of his express directions, had so indoctrinated them with Roman Catholic views that ultimately they refused to go with their father to a Protestant place of worship. The father thereupon commenced an action in their names by himself as next friend, he being a co-Plaintiff, to have them made wards of Court, and took out a summons in the action for directions as to their education. The wife then presented a petition in the matter of the infants, and of the Act 36 & 37 Vict. c. 12, with a view to their being brought up as Roman Catholics. Vice-Chancellor Malins dismissed the petition, and made an order on the summons declaring that the children ought to be brought up as members of the Church of England, and ought not to be taken to Roman Catholic places of worship, and restraining the mother from taking them to confession or to Roman Catholic places of worship without the consent of the father:—

Held, on appeal, that the father had not forfeited his right to have the children brought up according to his own religious views, and that the Court would aid him in enforcing that right, and that the injunction had been rightly granted:

But held, that the declaration ought to be omitted, leaving it to the father to do what he considered to be best for the temporal and spiritual welfare of the children.

The Court refused to examine the children, considering that a stronger case was required to induce the Court to interfere with a father than with a testamentary guardian.

Stourton v. StourtonF1 considered.

ON the 8th of February, 1864, the Hon. Leopold Agar-Ellis, a Protestant, married the Hon. Harriet Stonor, a daughter of Lord Camoys, who was a Roman Catholic. There were four children of the marriage, the eldest of whom, a boy, was born in November, 1864, and died in 1872. The other three, Caroline, Harriet, and Evelyn Mary, were born respectively on the 8th of January, 1866, the 21st of January, 1867, and the 11th of January, 1869.

Previously to the marriage a discussion took place as to the religious education of the children if there should be any. There was some conflict of evidence as to what passed on the subject, the case made by the wife being that previous to the marriage Mr. Agar-Ellis gave in the presence of witnesses an express unconditional promise that all the children should be brought up as Roman Catholics, and that the marriage had been agreed to on the faith of this promise. The case was dealt with on the supposition that this was the real state of facts.

The eldest child was baptized as a Roman Catholic, but, as Mr. Agar-Ellis stated, much against his wish. The eldest of the daughters was baptized as a Roman Catholic without the father's knowledge, and in disobedience to his express directions. The second daughter was baptized as a Protestant. The third, without the father's knowledge and against his orders, was baptized as a Roman Catholic.

On the 3rd of April, 1869, Mr. Agar-Ellis took the boy and the two girls who had been baptized as Roman Catholics to St. Saviour's Church, Pimlico, and had them formally received into the Church of England, and their names entered in the register of baptisms.

From the time that the children were old enough to go to church, the father, as he deposed, took them, or had them taken, to a place of worship of the Church of England. After church on Sundays he used to teach them the catechism of the Church of England, and he insisted that the nurse and governess who had the charge of the children should be Protestants, and should educate the children as Protestants, and he only allowed them to visit at the house of the wife's father on her promise that they should not go into the chapel at the house.

Mrs. Agar-Ellis, by an affidavit made on the 24th of July, 1878, in support of her petition, which will be mentioned hereafter, deposed as follows:—

“My children have always remained under my maternal care, and I have devoted much time and personal attention to their education, and, relying on and feeling justified by the promise given by my husband as aforesaid, I have omitted no opportunity of imbuing them with the principles of the Roman Catholic religion. I have regularly and systematically taught them the Catholic catechism and Catholic prayers, and have very frequently taken them to Catholic churches; and I have also, though without telling, and so far as I am aware, without the knowledge of their father, caused them to receive such sacraments of the Roman Catholic Church as it is usual for children of their age to receive. The said Caroline Agar-Ellis has been to confession about once a month for the last three years. The said Harriet Agar-Ellis has been to confession at similar intervals for the last two years, and the said Evelyn Mary Agar-Ellis has been to confession at similar intervals during the last twelve months. All my said three children have been confirmed as members of the Roman Catholic Church by a Roman Catholic bishop.

“The said Caroline Agar-Ellis and Evelyn Mary Agar-Ellis, my second and fourth children, were baptized as Roman Catholics. Relying on the promise aforesaid, I caused them to be so baptized without the knowledge or permission of my husband.

“Under the circumstances aforesaid, and as the result of my systematic and sustained teaching, the said three above-named infants are as well instructed in all the distinctive doctrines of the Roman Church, and are as fully impressed with the truth of those doctrines, and as fully conversant with and habituated to the practices and devotional usages of the Roman Catholic Church, as it is possible for intelligent and thoughtful children of their ages to be; and although they have as aforesaid attended Protestant churches and learnt some portions of the Protestant catechism, such attendance and learning have been very reluctant, and submitted to only in unwilling obedience to the positive commands of their father, and after much expostulation with him.

“Early in the present year the said three children refused to go any more to the Protestant church, and they have never done so since. When they first refused such attendance they were punished by their father for such refusal.”

Mr. Agar-Ellis deposed that the punishment above alluded to consisted only in his refusing them leave to spend the afternoon of that day at their cousins', and that he had not been aware till the spring of the present year that the children went habitually to Roman Catholic churches, and that he never knew of their having been confirmed as Roman Catholics, or of their attending confession till he learnt it from Mrs. Agar-Ellis's affidavit.

On the 28th of June, 1878, Mr. Agar-Ellis settled a sum of £100 consols upon trust for the three children, and on the 1st of July an action attached to the Court of Vice-Chancellor Malins was commenced by Mr. Agar-Ellis, and the children by him as their next friend, against the trustee to have the trusts of the settlement carried into execution, and on the 5th of July the usual judgment for that purpose was given.

On the 20th of July Mr. Agar-Ellis took out a summons in this action for directions as to the place where, and the persons by whom, the infant Plaintiffs ought to be educated, and, by an exhibit to an affidavit, stated that he proposed on the 3rd of August to send the children to the house of a beneficed clergyman, whom he named, to be educated and boarded.

On the 23rd of July Mrs. Agar-Ellis presented a petition at the Rolls in the matter of the infants and of the Act 36 & 37 Vict. c. 12, stating the ages of the children, the promise of the father before the marriage, and the facts contained in the paragraphs of her affidavit which are set out above. The petition further stated that the father had recently threatened that he would on the 3rd of August remove Harriet and Evelyn, to some Protestant parsonage, and would also remove Caroline from the care of her mother and cause her to be brought up as a Protestant; and, in the first instance, threatened that he would prevent the mother holding any intercourse with any of her children, but afterwards said she might sometimes see or write to them on condition that she should never speak or write on the subject of religion. That, under the circumstances, any attempt to bring up the three children as Protestants would have the effect of violating their consciences, and thus of materially injuring their moral sense; and further, that the children, and particularly the eldest, were at an age when their mental and physical well-being required maternal watching and care, and therefore that any separation between them and the mother, or any check upon the natural confidence existing between them and their mother, would be attended with most injurious results. The petition prayed that such proper directions might be given for the custody and education of the infants as should prevent their being deprived of the society and maternal care of, and free intercourse with, the Petitioner, and should admit of their being brought up as Roman Catholics; and that the Petitioner might not be debarred from seeing or writing to them, except on the terms of her not speaking or writing to them on the subject of religion; or, at all events, that such directions might be...

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65 cases
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    • United Kingdom
    • House of Lords
    • 19 February 1969
    ...(as far as it has the means of judging) of all his subjects." 17 After an interval of some years there followed In re Agar-Ellis (1883) 24 Ch.D 317 where strong expressions as to the father's rights as to his child are to be found. Brett M.R. said: "The Court could not interfere � except ......
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